2017 (1) TMI 1475 - AT - Companies Law

Petition barred by limitation in view of Section 433 of the Companies Act 2013 read with Article 113 of the Limitation Act 1963 - Held that - Section 433 of Companies Act 2013 will not be applicable to the old cases, the appellant/ petitioner before the Tribunal cannot escape the ground of delay and laches in preferring the Company petition as raised by the respondents. The appellant was removed as Director as back as on 31st December 2010 after notice to the appellant. There is no subsequent cause of action taken place thereafter. The appellant has not explained the delay in filing the Company Petition though there is delay of more than five years. As appellant submitted that the dividends are not paid in time, which are forwarded to his address at Ernakulum(Kerala) where he is not residing, but such submission cannot be accepted in view of the fact that the address at Ernakulum (Kerala) was given by the appellant to the company as one of his address and in the present appeal, the address for service on appellant, as set out is - D-3/ 1 1, South Star Apartments, Gandhi Nagar Behind KSRTC Bus Stand, Ernakulum-20. For the reasons aforesaid, we are not inclined to entertain this appeal. The appeal is accordingly dismissed

Summary

Issues:
- Barred by limitation under Section 433 of the Companies Act 2013 and Article 113 of the Limitation Act 1963.
- Applicability of Section 433 of the Companies Act 2013 to old cases filed under the provisions of the Companies Act 1956.
- Delay and laches in preferring the Company petition.
- Explanation for the delay in filing the Company Petition.
- Address for service on the appellant.

Analysis:
The judgment by the National Company Law Appellate Tribunal, New Delhi, dealt with a case where the Company Petition was dismissed by the National Company Law Tribunal Principal Bench, New Delhi, on the grounds of being barred by limitation under Section 433 of the Companies Act 2013 and Article 113 of the Limitation Act 1963. The cause of action for the petition had occurred by 31st December 2010, and the petition was filed after more than five years in September 2015 and refiled in January 2016. The Tribunal held that the delay and laches in preferring the Company petition cannot be escaped by the appellant, who was removed as Director back in December 2010 after notice. The appellant failed to provide a satisfactory explanation for the delay of more than five years in filing the petition.

The appellant's argument that the provisions of Section 433 of the Companies Act 2013 would not be applicable to old cases filed under the provisions of the Companies Act 1956 was considered, but the Tribunal found that the delay in filing the petition could not be justified based on this argument alone. The appellant's claim regarding dividends not being paid in time to an address where he was not residing was also dismissed as the address provided to the company was one of his addresses. The Tribunal emphasized that the address for service on the appellant was clearly specified.

In conclusion, the Tribunal was not inclined to entertain the appeal due to the delay and lack of justification provided by the appellant for the delayed filing of the Company Petition. The appeal was accordingly dismissed, and no order was issued regarding costs.